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Thursday, September 26, 2013

Kassian & Gagner: Reply to @mc79Hockey

When I began
this blog a few years ago, I planned on posting periodically to counter some
‘expert analysis’ that I saw out there in mainstream papers and the
blogosphere. After Zack Kassian’s high-stick caught Sam Gagner in the face last
Saturday night in Edmonton, some journalists and bloggers rushed to put their
take online for others to read. Most were very level-headed, but one particular
tweet caught my eye.

That's from
a prominent Edmonton Oilers’ blogger named Tyler Dellow (@mc79hockey),
who often writes level-headed pieces about his favourite team, advanced
statistics, and various other topics that catch his eye.

I’ve been a
fan of Tyler’s stuff for some time and was one of the first to retweet and
share his piece on Colin Campbell and his emails about Marc Savard – before the
mainstream media got it. Since that article, Dellow has generated a larger
loyal following of readers.

In part due
to his Colin Campbell story, I feel that Dellow’s notoriety as a blogger also
comes with responsibility. As a popular hockey blogger, his pieces represent
other bloggers and the legitimacy of their work, which are often contrasted as
'sub-par' from published journalists that you’ll find in your newspaper each
morning. Furthermore, when a writer has higher education in a particular area
(such as law), I would argue that they also carry the responsibility to be
unbiased and fair in analysis, to prevent offering opinions as fact to
impressionable readers.

That being
said, when Dellow suggested that he might write a piece about the Kassian /
Gagner play from a Criminal Law perspective, I wholeheartedly encouraged him to
do so.

Now, if
you’re seeking representation for a criminal matter – Dellow is probably your
guy. He’s a criminal lawyer, and I am not. Zack Kassian could afford better
representation than me. I’m a Criminology graduate who has worked with criminal
records for years, and done considerable research on the Brashear / McSorley
incident and the Bertuzzi / Moore incident over the years, but I’m not a
practicing lawyer, nor did I get many gold stars as a student.

But, as I read Dellow’s various tweets and articles
on the subject, I couldn’t help but disagree with his analysis. He does an
excellent job of laying out various case law around the issue of implied
consent to force (violence) on a hockey rink, but I feel he misses some
important points.

Consent to
Force/Violence in Hockey

In the area
of consent, some have argued that there is a certain element of accepted risk involved
in playing professional hockey. I would agree, and Dellow aptly covers this
topic. To give you the gist of the argument, pretty much any action in a hockey
game would be considered assault on the street in day to day life, based on the
relevant
legislation in Canada. Section 265 of the Criminal Code provides as follows:

265. (1) A
person commits an assault when

(a) without
the consent of another person, he applies force intentionally to that other
person, directly or indirectly;

Now,
different cases over the years have determined that there is implied consent
amongst players that step onto the ice regarding the allowable amount of force
employed. Depending on if you play in a beer league, or professional hockey,
the level of force consented to will vary, with the NHL most likely having the
highest threshold for acceptable force. Dellow covers this well, citing the R.
v. Cey decision from the Saskatchewan Court of Appeal:

“As a general matter, conduct which is impliedly consented to can vary,
for example, from setting to setting, league to league, age to age, and so on:
See R. v. St. Croix, (supra) at p. 124. In other words, one ought to have
regard for the conditions under which the game at issue is played in
determining the scope of the implied consent.”

Dellow reiterates:

“Different levels of violence become criminal in
different levels of hockey. This seems sensible to me. I play in a men’s
league. Guys have to go to work the next day. Nobody’s getting paid. There’s no
crowd to entertain. It’s sensible to think that what is impliedly consented to
by me stepping on the ice in my league is different than what Sam Gagner
impliedly consents to when he steps onto the ice in the best league in the
world.”

So we are in agreement that Sam Gagner impliedly consents to a greater
level of force in a game than we consent to in a casual beer league game, but,
Gagner’s consent is still not at a high enough level to include being
intentionally slashed in the face and having your jaw broken. This is discussed
in R. v. McSorley, and highlighted by Dellow in his argument (emphasis mine):

“The policy of the common law will not affect the validity or
effectiveness of freely given consent to participate in rough sporting
activities, so long as the intentionalapplications of force to which one
consents are within the customary norms and rules of the game.

The court’s majority determined that some forms of intentionally applied
force will clearly fall within the scope of the rules of the game, and will
therefore readily ground a finding of implied consent, to which effect should
be given. On the other hand, very violent forms of force which clearly extend
beyond the ordinary norms of conduct will not be recognized as legitimate
conduct to which one can validly consent.”

The problem here for Dellow is that he takes for granted a very
important detail at this stage of his argument - intent. McSorleyadmitted to
having the intention of slashing Brashear in the upper body, near the shoulder,
to instigate a fight. That's important. Even if we return to the definition of
assault once again, it would require that McSorley or Kassian“applies force
intentionally”.

Intent

You cannot base a decision in criminal law solely on the level of injury
sustained by the victim, or by the act itself (otherwise, any high-stick of errant
slap shot that causes an injury might be grounds for criminal charges). For
lowly Criminology graduates such as myself, it falls back to the actus reus
(guilty act) and mens rea (guilty mind). Both must be present.

Dellow has shown that the injury sustained and
force employed exceeds that which Gagner has consented to, however, this
argument is a bit of straw man. It’s not the real issue. McSorley and Kassian
both demonstrate the actus reus of swinging a hockey stick and hitting
someone’s head, but that’s where the similarities end.

In R. v. McSorley, it was successfully argued that
McSorley intentionally attempted to slash Brashear in the shoulder, while being
aware of a) the danger (likelihood of injury) in slashing someone in close
proximity to the head and neck, and b) the fast pace of the game and sudden
changes in direction that create a razor-thin margin for error. Basically,
McSorley intentionally did something stupid with a high likelihood of error
when he should have been aware of the risks and known better.

So, did Kassian intend to slash Gagner in the face,
or at all?

If you ask Dellow, “Kassian got beat by Gagner and
wanted to take a pound of flesh anyway.”

Well, that’s pure fabrication.

In fact, Kassian has not indicated anything to that
effect, and proving that beyond a reasonable doubt would be difficult to prove
in court.

If you are unfamiliar with the burden of proof in
various courts, I’ll help you out. It's not just as simple as 'innocent until
proven guilty'. If this case were tried civilly, the burden of proof would be
lower, and Gagner’s counsel would only need to prove ‘on a balance of
probabilities’ that Kassian intentionally slashed Gagner beyond a level of
force consented to in an NHL game. That basically means ‘more than a 50%
chance’. However, since Dellow is discussing criminalcharges, the burden of
proof lies on Gagner’s side to demonstrate beyond a reasonable doubt – that
Kassian intended to injure Gagner.

So, the real question is…is there proof (of the
highest standard used in Western jurisprudence) of Kassian’s intent to injure
Gagner to such a degree that no other logical explanation exists?

I suppose it depends on if you’re wearing
Oiler-coloured glasses or not. If you look at the video, you’ll see that
Kassian is not even looking at Gagner when he swings his stick, and when it
hits him. That should not exhonerate him on it's own, but in R. v. McSorley,
the fact that McSorley “aimed” at Brashear was cited numerous times, and was
relevant in the decision.

Should Kassian have control of his own stick?
Absolutely. Did he intentionally slash at Gagner to injure him? Boy, not sure.
Watch the video again. Kassian’s other arm also flails out, suggesting he may
have been off-balance. A second stick in his right hand might’ve done the same
thing in the other direction. Moreover, there does not appear to be a snapping
motion to his left arm, indicating a desire to increase force of the swing.

Now, as Kassian’s fictitious counsel, remember that
I do not have to prove that Kassian was off-balance. The burden of proof does
not rest on us. The burden of proof lies on Dellow, as Gagner’s fictitious
counsel, to demonstrate that Kassian purposely slashed Gagner with the intent
of injuring him beyond a reasonable doubt.

I don’t know about you, but I have my doubts. Does
this look like the face of someone who intentionally does anything?

When it comes to proving intent beyond a reasonable
doubt, crown counsel in R. v. McSorley had more than just video of the act. They
had the benefit of the context of the game and previous altercations between
the two men - Brashear riling up the Boston bench earlier in the game after
beating up McSorley in a fight, and McSorley’s repeated (failed) attempts to
instigate another altercation, and McSorley’s desire to settle the score before
the end of the game to avoid suspension.

With Kassian and Gagner, we have no previous
history with these players. Gagner is not a fighter, and alleging that Kassian
was attempting to goad him into a fight is silly. It was a 2-1 game in the
second period, and Kassian and the team would gain nothing emotionally from
pummeling a smaller player, and there was no retribution to be sought from an
earlier incident against Kassian or another Vancouver Canucks’player.

Basically, there is no context for Kassian to
commit such an act, and there is significant doubt as to his intentions.

Can an argument be made that Kassian’s actions were
criminal? Absolutely. But in the infamous words of Chris Rock:

"Shit,
you can drive a car with your feet if you want to, that don't make it a good
fucking idea!"

All jokes aside, Dellow does an excellent job of
articulating how this case could be put before the courts. In fact, his account
for the level of consent implied in an NHL game explains why Corey Tropp of the
Buffalo Sabres likely would not have a case for his broken jaw, suffered during
a fight (an acceptable level of force in the NHL) the same night as Sam
Gagner’s in Edmonton.

However, in light of the lack of evidence proving
Kassian’s intent to slash Gagner or cause injury, the argument really doesn’t
hold any water.

“I’ve had people on Twitter who have criminology degrees (editor's note:
THAT’S ME!) or who are “aspiring law people” condescendingly explain to me that
I’m wrong and that Kassian is ok because there’s no intent. With respect, the
intent that’s necessary was the intent to swing his stick at Gagner. What he
intended to hit is relevant in terms of determining whether it’s within the
scope of the violence to which Gagner consented – if, for example, Gagner had
fallen, and caught a slash intended for his shins in his face, it’s different –
but when you swing a stick blindly and high back at a player, you intended to
strike him high on the body.”

Again, Dellow is taking for granted that Kassian intended to swing his
stick at Gagner, and that it wasn’t an accident. Moreover, he’d have to prove
that Kassian intended to slash Gagner in an area of his body that was likely to
cause serious injury, as Dellow himself alleges would exhonerate Taylor Hall
for this play.

Basically, Dellow puts forth an argument that Oilers’ fans might associate with,
but that’s because it’s written by one.

Anyone who followed the Todd Bertuzzi / Steve Moore
incident is familiar with how stupid putting suggesting eye for an eye violence
in hockey is. When Dellow opens up his article agreeing with Oilers’ forward
Ben Eager’s quote:

“We play them a lot down the stretch, and we’re
going to go after their skill players also.”

By saying “he’s hit on the only rational response
that a hockey player in the current climate can have”, he instantly loses
credibility in my eyes for a fair and factual take on events.

I fully applaud him for articulating an argument on
Gagner’s behalf, but the article fails to prove the assertion that Kassian
deliberately swung his stick at Gagner’s head. Instead, the writer focuses too
much time on the level of force exceeding that which is consented to during an
NHL game. It’s all meaningless without proving the intent beyond a reasonable
doubt...and don’t even get me started on his take on the Cold War!

Of course, I'm not a lawyer. But law degree or not,
I'm pretty sure the only person who knew exactly what he was doing is Zack
Kassian... and I don't think he's a lawyer either. What do you think?

10 comments:

I don't know. I'm no lawyer, and I might be wearing Oilers-coloured glasses, but it sure looked to me like he started swinging his stick after he realized he was going to miss his check, but before he hits the boards. That, to me, suggests an intent to hit Gagner with his stick (maybe not beyond a reasonable doubt, it's true).

But even if you can't prove that he intended to slash Gagner, do you not think that there might be an argument to be made that a professional hockey player flailing his stick around at head height with enough force to break a man's jaw in two places might be considered negligent to the point of criminality anyways?

Yeah, Shanahan commented on that too. Perhaps Kassian was bracing himself, or trying to pivot in an effort to engage Gagner as he realized his hit would miss. I'm not sure - it's so bloody awkward lol.

I'm not trying to make excuses for the guy, I just think... if Kassian - at any point - had the intention of slashing Gagne really hard, why would he do it so awkwardly - without looking, and what reason would he have in a close game with no history?

I believe that you're forgetting that negligence is a crime. If you release an overly aggressive dog in a park full of kids, you don't need to have intended injury to a child to have committed a criminal act.

Kassian also said he didn't intend to hit him in the head not didn't mean to hit him.

I agree with you on the negligence side, but the argument was for assault a la McSorley.

Where dogs are concerned, I agree with your comment but don't think the analogy fits. There is intent to do something stupid, whereas a defence could be formulated that Kassian was simply careless, not negligent.

Also, Kassian's quote in print might suggest that he aimed elsewhere, but when I watch the clip, he doesn't emphasize 'in the head'. Purely my opinion, but I think he could just be saying 'obviously I didn't intend to hit him in the head (or otherwise).

I'm sorry - you agree that negligence is a crime??? While you may think that tort is just a delicious pastry - I assure you it is not. Perhaps they didn't teach tort law in your criminology classes but tortious acts and criminal acts are wholly different.

In short - negligence is not a crime. You are liable to an individual for damages as a result of a negligent act. You are penalized by a fine (payable to the state) and/or jail time for a criminal act. They also have different standards, tests and are embodied in wholly different legislation.

P.S. I suggest you look up strict liability and the Dog Owners' Liability Act for more information on this dog biting analogy

You've skewed the argument throughout by implying that the burden is to prove that Kassian intended to injure Gagner beyond a reasonable doubt. In reality, and you should know this based on your background, the Crown would be required to prove beyond a reasonable doubt that Kassian intentionally applied force to Gagner.

The resulting injuries sustained by Gagner, or whether Kassian intended to injure him or not, are irrelevant in determining whether Kassian would be guilty of assault.

I'm not saying that Kassian would be convicted, but in your attempt to play devil's advocate in this case you've manipulated the question to in an attempt to strengthen your case. Chastising Dellow for propping up a strawman rings with a sense of irony.

I agree... perhaps i emphasized that too much in the article. I agree that Crown would be required to prove that Kassian intentionally applied force to Gagner, but i still think counsel would have a difficult time asserting beyond a reasonable doubt that it was done intentionally - whether to injure or not.

Unless we're speaking about separate things. Intent to body check is there. I think it's debateable that the intent to slash is there, given the off-balance flailing nature of it all. It does not appear pre-meditated in any way. (Not that Crown has to prove that, but I think it worked against McSorley in the decision nonetheless).

I'm not trying to manipulate the question... I just think the Dellow spent so much time on the Consent piece but neglected intent. I agree with him on the consent side, but he asserts it was done intentionally to get a pound of flesh, but provides no evidence of it.

Not a Lawyer or student but we all know that Kassian was directed to "play with an edge" . He was trying to make an impression on a coach that was hired specifically to make the team tougher. That is the pink Elephant in the room that no-one can see or catch. The League has to find a way to curb this attitude without ruining the game. The players themselves have to solve their problem either by general integrity (fat chance), eye for an eye or developing a suitable mechanism of regulation. Otherwise they are implicit in consenting to this behavior.